Can you trademark the color red?

Sally Herships: Tiffany has its blue. Hermes: orange. Why shouldn’t Christian Louboutin have the red on the soles of its shoes trademarked?

Susan Scafidi: The difference in this case, is that the other single color trademarks in fashion are for packaging rather than the product itself, but it’s really very close.

Susan Scafidi is director of the Fashion Law Institute at Fordham. She says companies can trademark single colors, which is why Louboutin sued Yves Saint Laurent last year.

YSL created four styles of red shoes with red soles. Louboutin was trying to protect the trademark it already had, but the case backfired. The judge questioned the trademark and now Louboutin is fighting the decision in court.

Scafidi: The judge felt like fashion is of course a commercial activity but is also very much like art. And because, an artist needs to have a complete palette, he felt like a designer too, needs to have a complete palette.

Including the color red. Scafidi says multiple color combinations like Burberry’s plaid or Gucci’s green and red stripe are still safe – for the time being.